Rules: Contempt of Court

8.1 Proceedings In Contempt

(1) Embarrass or obstruct the court in its administration of justice or derogate from its authority or dignity;

(2) Bring the administration of justice into disrepute; or

(3) Constitute disobedience of court order or judgment.

(b) Direct contempt defined. Contemptuous conduct constitutes direct contempt if it is committed in such a manner that no evidentiary hearing is necessary for the court to determine that facts surrounding such conduct and is committed in an integral part of the court when the court is performing its judicial functions.

(1) Summary hearing. A summary hearing with a finding and adjudication of direct contempt may be made by the court if immediate punishment of the contemnor is essential to prevent demoralization of the court's authority before the public. In such an event, the contemnor is not entitled to notice, a written charge, plea, to cross-examine or subpoena witnesses, present evidence or to counsel. There is no right to trial by jury, unless the court states, prior to hearing, that it will impose a sentence of more than six (6) months, a fine of more that $500.00, or both, upon adjudication of contempt.

(2) Contemptuous conduct specified/statement in mitigation. Prior to an adjudication of direct contempt, the court shall inform the contemnor of the specific conduct forming the basis of contempt and, prior to imposition of sanctions, the court shall permit the contemnor an opportunity to present a statement in mitigation.

(3) Finding of contempt/imposition of sanctions. Upon the commission of an act constituting direct contempt, the court may find the contemnor in direct civil contempt, direct criminal contempt, or both, and may:

(i) impose sanctions instanter, or

(ii) impose sanctions within a reasonable time thereafter.Upon a finding of direct criminal contempt, the court may impose a fine not to exceed $500.00, incarceration for a term not to exceed six (6) months, or both, unless the contemnor is afforded a right to trial by jury, in which case, if the jury finds the contemnor guilty of contempt, the court is not limited in fine or incarceration and may impose reasonable sanctions. In addition to, or in lieu of fine and incarceration, the court may impose such other sanctions it deems reasonable and appropriate.

(4) Written order required. Upon the imposition of sanctions, the court shall enter a written judgment order setting forth the factual basis of the finding and sanctions imposed.

(5) When referral to another judge required. Where a controversy between the judge and contemnor is integrated with the contemptuous conduct and embroils the judge to the degree that his objectivity can reasonably be questioned, the judge shall recuse himself on the issue of contempt and refer the matter to the Chief Judge for reassignment. In this event, the judge before whom the alleged contempt transpired shall specify in writing the nature of the alleged acts of contempt, shall direct that a record of the proceedings surrounding the said acts be prepared, and shall transmit such record to the judge hearing the matter. The judge hearing the contempt matter shall base his findings and adjudication of direct contempt solely on the charge and record of proceedings.

(6) Appeal. An appeal from an adjudication of direct contempt may be taken as in any criminal case if the finding is one of direct criminal contempt, and as in any civil case, if the finding was one of direct civil contempt. Upon filing of a notice of appeal, the court may fix bond and stay sanctions pending disposition of the appeal.

(c) Indirect criminal contempt defined.A contemptuous act constitutes indirect criminal contempt when it occurs outside the presence of the court or in an area that is not an integral or constitute part of the court, or the elements of the contemptuous act are not otherwise within the personal knowledge of the court. An action for indirect criminal contempt is a separate action and not a part of the underlying cause out of which the contempt arose. A contemptuous act committed in the presence of the court, but not summarily treated as a direct criminal contempt as provided in 8.1(b) of this rule, shall be prosecuted as an indirect criminal contempt.

(1) Petition for Adjudication of Indirect Criminal Contempt. A proceeding in indirect criminal contempt shall be commenced by the filing of a Petition for Adjudication of Indirect Criminal Contempt. The petition shall be verified and set forth with specificity the nature of the alleged contemptuous conduct.

(2) Prosecution of indirect criminal contempt. Indirect criminal contempt may be prosecuted by the State's Attorney, counsel for a litigant, or by an amicus curiae appointed by the court.

(3) Notice of hearing. If the court finds that the verified petition sets forth allegations which support the charge, R shall set the matter for hearing and order notice be given to respondent. Service of notice, together with a copy of the petition, shall be made in a manner as provided by Supreme Court Rule 105(b)(1) or (2) as the court may direct. The notice shall provide therein that should the respondent fail to appear, a body attachment may issue. If the respondent fails to appear after service of notice, or the court has good reason to believe the respondent will not appear in response to notice, the court may direct that an immediate body attachment issue against the respondent. When a body attachment issues, the court shall set bond thereon.

(4) Respondent's due process rights. Upon respondent's first appearance before the court, it shall determine if respondent has received a copy of the petition and advise respondent of his right to:

(i) a public hearing, including the right to cross-examine and subpoena witnesses, present evidence, and make a written or oral response to the charge:

(ii) counsel, and the appointment thereof if indigent;

(iii) freedom from self-incrimination;

(iv) the presumption of innocence;

(v) to be proven guilty only by proof of guilty beyond a reasonable doubt; and(vi) a trial by jury if the court, prior to hearing, declares that a sentence of more than 6 months incarceration, a fine of more than $500.00, or both, will be imposed upon an adjudication of guilt.

(5) Motion for substitution of judge. A motion for substitution of judge made pursuant to Section 114-5(a) of the Code of Criminal Procedure shall be granted if made within ten (1 0) days of the matter being placed on the trial call of the judge, or at any time pursuant to Section 114-5(d) of the Code of Criminal Procedure when for cause and supported by affidavit; however, such motion must be made before the judge has ruled on a substantive issue of the action and cannot be made to avoid or delay hearing on the issue of criminal contempt.

(6) The hearing. In a proceeding for indirect criminal contempt, the hearing shall be held as in any other criminal case pursuant to the respondent's due process rights as enumerated in Section 8.1(c)(4) of this rule.

(7) Statement in mitigation. Upon an adjudication of indirect criminal contempt, the judge shall afford the contemnor an opportunity to make a statement in mitigation prior to imposition of sanctions.

(8) Sanctions. If the contemnor has not been afforded the right of trial by jury, the court may sentence the contemnor to jail for a term of not to exceed 6 months, impose a fine of not to exceed $500.00, or both; if the contemnor has been afforded the right of trial by jury, the court may impose a reasonable fine or sentence of incarceration. In addition to, or lieu of, fine or incarceration, the court may impose such other reasonable sanctions it deems appropriate, including attorney fees and costs.

(9) Written order required. Upon an adjudication of indirect criminal contempt, the court shall enter a written order setting forth the factual basis for the finding of contempt and sanctions imposed.

(10) Appeal. An appeal may be taken from an adjudication of criminal contempt as in any other criminal matter. Upon the filing of a notice of appeal, the court may fix bond and stay sanctions pending disposition of the case on appeal.

(d) Indirect civil contempt defined.Indirect civil contempt is a continuation of the underlying cause of action out of which the contempt arose, where the elements of the contempt are not within the personal knowledge of the judge; and

(i) the act consists of the failure to obey a court order or judgment; and

(ii) coercive, rather than punitive, sanctions are sought to compel compliance with the order or judgment.

(1) Petition for Adjudication of Indirect Civil Contempt. An indirect civil contempt proceeding shall be commenced by the filing of a Petition for Adjudication of Indirect Civil Contempt. The petition shall be verified and shall set forth with specificity the portion of the court order or judgment alleged to have been violated, together with the date or dates, and nature of the violation. If the court finds that the petition provides sufficient facts to show prima facie evidence of civil contempt it may, at its discretion, enter a rule to show cause on the respondent or, instead, not enter a rule and set the petition itself for hearing. In any event, the court shall set the matter for hearing and order that respondent be given notice of the time, date and place of hearing.

(2) Notice. Notice of the hearing and copy of the petition shall be served by regular U.S. Mail, postage prepaid, to respondent's last known address or in any manner as provided in Supreme Court Rule 105(b)(1) or (2) as the court may direct. Notice by personal service shall be served not less than seven (7) days prior to hearing, and notice by U.S. Mail shall be mailed not less than fourteen (14) days prior to hearing. The notice shall contain therein that should respondent fail to appear, a body attachment may issue. If the respondent fails to appear after due notice or if the court has reason to believe the respondent will not appear in response to notice, the court may direct that a body attachment or warrant of arrest be issued against respondent and in such event, the court shall set bond which shall be noted on the body attachment or warrant of arrest.

(3) Response to the petition. The respondent may submit an oral or a written response denying with specificity any of the allegations of the petition together with affirmative defenses. Those allegations of the petition not specifically denied are deemed admitted. If the basis of the petition is the failure of the respondent to make court ordered payments to the clerk of the court, the records of the clerk shall be prima facie evidence of the amount received by the clerk.

(4) Substitution of judge. A respondent may file a petition for substitution of judge pursuant to Section 2-1001 of the Code of Civil Procedure if such petition is filed prior to the judge making a substantive ruling in the underlying action or on the petition for adjudication of indirect civil contempt, and is not filed to avoid or delay hearing on the petition.

(5) Respondent's due process rights. The respondent has a right to notice, to be provided with a copy of the petition, to answer orally or in writing, to be heard and to present evidence, to cross-examine witnesses, to call witnesses, and to have an attorney of choice.

(6) Conduct of the hearing. Civil contempt proceedings shall be heard before the court without jury. The petitioner may call the respondent as an adverse witness pursuant to Section 2-1102 of the Code of Civil Procedure. Upon petitioner's showing prima facie evidence of the respondent's failure to comply with a court order, the burden of production shifts to the respondent who must prove any affirmative defenses, including lack of means to comply with the court's order, by a preponderance of the evidence.

(7) Finding of contempt/sanctions. If the court finds the respondent in civil contempt, it shall impose sanctions instanter or at a later date. Prior to imposition of sanctions, the contemnor shall have a right to make a statement in mitigation. Sanctions may include a continuing fine and/or incarceration or other reasonable sanction the court deems appropriate and such sanctions shall remain in full force and effect until the contemnor purges himself of contempt or is otherwise discharged by due process of law. The court may assess reasonable attorney's fees against the contemnor.

(8) Written order required. Upon an adjudication of civil contempt, a written order shall be signed by the judge specifying the contemptuous conduct, the sanctions imposed and the means by which the contemnor may purge himself of contempt. A copy of the order shall be given to the contemnor.

(9) Appeal. An appeal from a judgment of civil contempt may be taken as in any civil case. Upon the filing of a notice of appeal, the court may fix bond and stay the sanctions pending the disposition of the appeal.